UNITED STATES

Headquartered in Philadelphia and with offices in Providence, RI and Vail, CO, our U.S. immigration team boasts a combined decades of experience assisting investors and entrepreneurs with their immigration goals. Whether its securing permanent residency for your family, obtaining a visa to pursue your dream of managing a U.S. based startup, or relocating for the purpose of bringing your world-class talent to the U.S., our experienced team sets us apart in a crowded and increasingly complex field. We address all matters, whether large or small – from individual business visitor visa applications to EB-5 regional center applications and project representation.

If you are considering starting a business, investing in an immigration-related offering, or using immigrant capital in your projects, please contact us to discuss the various options which may be available to you as you move forward with your new venture. Investors in the United States may have a number of immigration options available, but the criteria for these visas are extremely specific and very carefully controlled. Further, the U.S. immigration laws are constantly subject to an ever-changing landscape of agency guidance, regulatory action, and legislative reform. Therefore, getting professional advice is essential at the outset of any entrepreneurial plan.

There are several options available for investors, entrepreneurs, and U.S. businesses in this regard, including:

EB-5 Immigrant Investor Green Card

EB-5: OBTAINING PERMANENT RESIDENCY THROUGH INVESTMENT
PERMANENT RESIDENCY THROUGH INVESTMENT

Congratulations on your interest in obtaining or facilitating U.S. Permanent Residency through investment. The Employment-Based Fifth Preference Category (known as “EB-5”) allows one to obtain lawful permanent residency (commonly referred to as a “Green Card”) through investment in a new, for-profit commercial enterprise.

As described by the United States Citizenship and Immigration Services (“USCIS”), the center piece of the EB-5 Program is the creation of jobs. Unlike other countries’ investor programs, an EB-5 qualifying investment must create ten full time jobs for qualifying workers. The various ways of determining and calculating job creation are discussed in further detail below. The general focus of EB-5 immigration involves the investment of lawful funds into a for-profit entity that accordingly utilizes the funds in a project, creating jobs in accordance with the EB-5 rules and regulations.

THE INVESTMENT

An EB-5 investor must show the lawful sources of his/her invested funds. An investor need not necessarily evidence the acquisition of his or her entire net worth. Instead, the focus is on how the investor acquired the EB-5 capital to be invested and to trace its ultimate path from its source to the new commercial enterprise. Because the burden of proof is on the investor, extensive documentation relating to investment must be included in the initial petition documents. Under current law, unrestricted gifts to the investor are allowed, however the investor must personally possess the capital and make the EB-5 investment. The focus in such cases shifts to how the gift or acquired his/her gifted capital.

The current minimum investment amount is $1,000,000 of capital, which is usually a cash investment. However, this minimum investment amount is halved to $500,000 if the investment is made into a project that is principally doing business in a Targeted Employment Area (“TEA”). Under the regulations, a TEA is defined as a rural area, or designated area that experienced 150% of the national unemployment rate. The regulations bestow a great deal of discretion upon individual state agencies in defining the relevant area facing high unemployment. Accordingly, most EB-5 projects are able to leverage the lower threshold investment amount, as project principals and attorneys work closely with state agencies. Our team at Relikem India has such extensive experience coast-to-coast.

Note that whether the lower threshold investment applies is purely a matter of geography: it does not matter whether an investor is utilizing a “Regional Center” or “Direct” EB-5 Investment. While most Regional Centers offer $500,000 investments, they need not necessarily do so. Likewise, Direct investments may also utilize lower thresholds if the applicable criteria are met.

REGIONAL CENTER INVESTMENTS

The vast majority of EB-5 investors receive their permanent residency through an investment made in a “Regional Center.” A Regional Center is a specific entity focused on stimulating economic activity through EB-5 investment. Each Regional Center has received approval and licensure from USCIS following a rigorous application process and must undergo annual compliance procedures. A niche industry, there are over 800 approved Regional Centers, which are listed on the USCIS web site.

The main benefit of a regional center investment is its ability to utilize indirect job creation. Generally speaking, regional center investments utilize economic modelling to measure the job creation of the EB-5 Project’s activities. Unlike “Direct” EB-5 investments, the relevant Regional Center entities need not hire any employees. Accordingly, this allows for greater flexibility in the use of EB-5 funds and the ability for the Regional Center to aggregate larger amounts of investors, provided that total job creation is equal to or greater than 10 jobs per investor. The economic modelling generally caps the amount of investors that may subscribe to a particular project.

Typically, EB-5 investors utilizing regional center investments have a relatively less active role in day-to-day management. Usually, they are admitted to their respective new commercial enterprises as limited partners or non-managing limited liability company members and retain minimal voting and advisory rights. EB-5 funds are usually part of a larger capital stack and total job creation can be measured by examining all impacts of a project, not just EB-5 funds.

Regional Centers generally have dedicated staff and legal counsel tasked with creating the specific project offering documents that are mostly uniform across investors. Because the EB-5 capital must be deployed to job creation, Regional Centers typically charge an administrative fee of 10-15% of the investment amount to recoup their overhead expenses. The Regional Center program is not currently a permanent facet of the immigration system and must be periodically renewed by the U.S. Congress.

DIRECT EB-5 INVESTMENTS

Although a minority of EB-5 filings, Direct EB-5 investments may present an option for the more entrepreneurially-minded immigrant. Direct investments are unaffiliated with Regional Centers. Any lawful, for-profit business can be utilized for EB-5 provided that all regulatory requirements are met. Unlike Regional Center investments, a Direct EB-5 investment must be made in a new commercial enterprise that itself (or through a wholly-owned subsidiary) hires W-2 employees. Employees resulting from a Direct Investment must have the requisite immigration status and work full-time, which is defined as 35 hours a week or more. It is very common for restauranteurs, consultants, and entrepreneurs opening smaller businesses to utilize EB-5 for a direct investment. Further, some foreign nationals may also be able to qualify for an E-1 or E-2 nonimmigrant visa in conjunction with pursuing the EB-5 Green Card.

Further, some projects are offered on the marketplace as “Pooled Direct” investments. Similar to a Regional Center, these project principals seek to aggregate EB-5 investors and admit them in relatively limited roles. Utilizing direct job creation, capital is deployed by the new commercial enterprise and/or its wholly-owned subsidiaries to hire employees. While not as scalable as a Regional Center, this model is common for franchises and manufacturing which require relatively larger direct hiring. Again, the requisite job creation of 10 full-time jobs per investor must be met.

The Direct type of EB-5 investment is a permanent part of the Immigration and Nationality Act. While immigration laws are always subject to change, it is not subject to a sunset date.

A THREE-STEP PROCESS

Unlike most types of employment-based immigration, EB-5 requires a three-step process to securing an unconditional, 10-year Green Card.

Step One – Form I-526: In this first step, an investor generally needs to present information that s/he has or is in the process of investing the required capital in an EB-5 project that meets the regulations. The I-526 requires submission of an EB-5 compliant business plan and supporting documentation substantiating that qualifying job creation is more likely than not to occur. Further, the investor must show the lawful source(s) of the capital investment. Unlike other types of immigration processes, an investor cannot currently file I-526 and apply for a Green Card at the same time. Rather, the I-526 must be approved before commencing the second step.

Step Two – Adjustment of Status or Application for an Immigrant Visa: Once the I-526 is approved, an investor, spouse, and unmarried children under the age of 21 may pursue permanent residency. Depending upon the investor’s status, this may be done in the United States through a process called “Adjustment of Status” or abroad through a process called “Consular Processing.”

If an investor is in lawful nonimmigrant status in the U.S. and EB-5 visas are available, s/he may file Form I-485 to adjust status to a lawful permanent resident. Upon filing of this form, the applicant is granted authorized stay in the U.S. independent of an underlying status, such as a student or work visa. The applicant may also apply for ancillary benefits, such as work and travel authorization, while awaiting adjudication of the Green Card. There usually is no personal interview unless there are questions relating to the applicant’s admissibility.

If the investor resides abroad, does not qualify to adjust status, or prefers to handle the process outside of the U.S., s/he may pursue Consular Processing. In this procedure, USCIS sends the investor’s file to the Department of State after I-526 approval. Through the National Visa Center, the investor and qualifying family members must complete a comprehensive online Immigrant Visa Application (Form DS-260) and submit supporting documentation. Once a visa is available, all applicants must appear at a consulate abroad for an interview. The consulate then prints immigrant visas in each person’s passport. The applicants must then enter the U.S. during the validity period of the visa and pay a fee for the Green Card. At this point lawful permanent residency is achieved, although the Green Cards themselves may take months to print.

Practically all Green Cards in the immigration system are valid for 10 years and can be renewed with relatively little documentation. However, an EB-5 Green Card is conditioned upon the satisfactory completion of the third step. This is commonly referred to as Conditional Permanent Residence or CPR, where a petition to remove the conditions must be filed before expiry.

Step Three – Form I-829: Within 90 days of the expiration of the Conditional Green Card, an investor and associated family members must file Form I-829 to remove conditions. In this petition, the investor must present evidence that (1) a new commercial enterprise was established; (2) the investor invested or was in the process of investing the required capital; (3) that the enterprise and capital investment was sustained during the period of conditional residency, and (4) that the requisite jobs were created or can be expected to be created within a reasonable time. Looking back to the I-526, this petition process generally requires submission of tax and business documentation, evidence that the business plan was executed, and proof that the economic model was sufficiently met or the requisite hires were made (as applicable). Following successful adjudication of Form I-829, the investor and family members are issued permanent, 10-year Green Cards. At that time, the investments may be redeemed in accordance with the offering documents governing the EB-5 project. The immigrants may also optionally pursue U.S. citizenship once they qualify.

The EB-1-C Multinational Executives and Managers Green Card

EB-1-C: OBTAINING PERMANENT RESIDENCY THROUGH INTRACOMPANY TRANSFER AS AN EXECUTIVE OR MANAGER

OVERVIEW

The EB-1-C Immigrant visa category awards Green Cards to individuals who have been employed abroad by a qualifying entity and who are transferred to a U.S. entity in a managerial or executive capacity on a permanent basis. While it does require a U.S.-based employer (a petitioner), it is a method frequently utilized by entrepreneurs around the world. For those individuals who qualify, the EB-1-C Green Card provides a relatively straightforward path to a Green Card in a preference category that historically has no quota backlogs. As discussed further below, many executives and managers also utilize the L-1A non-immigrant visa to enter the U.S. relatively quickly with their family members and then file for the EB-1-C when it is appropriate to do so.

REQUIREMENTS

In order to qualify for an EB-1-C visa, an entrepreneur must:

• Have been employed abroad for one year in the previous three years before entry into the U.S. by the parent, subsidiary, or affiliate of the U.S. employer / petitioner. The key qualifications are that the entity abroad and the petitioner need to have common control, usually evidenced by >50% common ownership;
• The employment abroad was in a managerial or executive capacity;
• The qualifying foreign entity must continue to be doing business and have the requisite qualifying relationship with the U.S. petitioner at the time the immigrant petition is filed;
• The intended position with the U.S. employer must be in a managerial or executive capacity; and
• The U.S. employer must have been doing business for at least one year and have the ability to pay the immigrant’s salary.
  Unlike EB-5, the EB-1-C does not require a personal investment, nor does it bestow conditional residency. The Green Card that is issued following successful immigration is unconditional.

PROCESS

The immigrant petition (Form I-140) is filed with USCIS. If the manager/executive is already in the United States in a valid nonimmigrant status (such as L-1A, see below), Form I-485 may be concurrently filed with USCIS if visas are available. If the applicant is abroad, s/he must wait for Form I-140 to be approved before consular processing.

Premium processing is not currently available for the EB-1-C category and processing times generally vary from a few months to a year. Further, given its “doing business” requirements on both the foreign and domestic entities, it cannot be used in startup scenarios. Individuals seeking to enter the U.S. more quickly or those establishing new companies may find it more convenient to obtain L-1A visas first and then apply for the EB-1-C once the immigrant petition can be supported.

THE L-1A VISA

The L-1A nonimmigrant visa is analogous to the EB-1-C. The requirements are quite similar in terms of the qualifying entities and employment. A few notable exceptions however include:

• The employment abroad need not be in a managerial / executive capacity but can be qualifying with a “specialized knowledge” capacity. Styling an L-1A petition this way, however, may make it difficult to obtain EB-1-C approval later;
• The L-1A may remain on foreign payroll;
• The petition may be decided with premium processing, enabling the ability to attend a visa appointment in as little as 14 days;
• The L-1A may be used to start up a U.S. entity, as discussed below.

An L-1A petition is valid for three years following approval in cases where the U.S. employer has been doing business for at least one year. Petitions may be extended in two-year increments. The maximum stay in L-1A status, subject to some exceptions, is seven years.
Spouses and dependent children of L-1 visa holders may obtain L-2 visas. Spouses may apply for work authorization, allowing them the opportunity to work in the U.S. for any entity. Children do not qualify for work authorization; however, they may attend public or private schooling without student visas until the age of 21.

OPTIONS FOR STARTUPS

An L-1A can be utilized in conjunction with a startup entity that has not been doing business for a full year prior to filing, which is known as a “new office” petition. This provides key opportunities for entrepreneurs who have run successful, sustained businesses abroad and now seek to open businesses in the United States.

New Office petitions tend to be more document intensive as they have additional requirements beyond those imposed upon established L-1 petitioners. Specifically, such petitions must include evidence that:

• Sufficient physical premises for the office have been secured. Usually a lease must be signed and in effect prior to filing;
• The L-1A beneficiary has met the one year continuous employment abroad requirement. Time spent in the U.S., even if done in conjunction with establishing the new entity under the control of the foreign employer, does not count toward qualification;
• The intended U.S. operations will, within one year, support an executive / managerial position. Startup companies often have employees wearing many hats and requiring executives to perform clerical or administrative work. The new office L-1A petition allows this, however, a sufficient position must be created during the year; and
• Usually, comprehensive business plans are required. Such plans need to detail the foreign and domestic entities, include financial pro formas, document investments made, and the ability to pay employees. Detailed hiring plans are also helpful in such discussions.

A “new office” petition is approved for only one year. The petitioner may extend the petition for two additional years toward the seven-year limit upon showing that the entity remains active and operating and that the executive / managerial petition is sustainable.
Accordingly, many entrepreneurs that are executives or managers abroad are able to immigrate to the U.S. by establishing a new office, obtaining an L-1A visa and extension approval, and then pursuing a Green Card through the EB-1-C category.

The E-2 Nonimmigrant Investor Visa;

E-2: TEMPORARY NONIMMIGRANT TREATY INVESTOR VISA

OVERVIEW

The E-2 “Treaty Investor” visa is open to certain foreign nationals who are coming to the U.S. to develop and direct the operation of a business. Unlike most other visas, the E-2 is not open to the entire world, but only available to those nationals of certain countries in which the U.S. maintains treaties of commerce and navigation. The E-2 visa provides relatively fast entry into the U.S. by allowing applicants the opportunity to apply directly with a consulate abroad; no petition to USCIS is needed. While there is no statutory or regulatory limitation on the number of times an E-2 visa may be renewed, it does not in and of itself allow for permanent residency (a “Green Card.”) It may, however, be used in conjunction with a Direct EB-5 process or perhaps even an EB-1-C provided that those qualifying criteria are independently met.

REQUIREMENTS

1. Nationality: The investor (either a real or corporate person) must be a national of a treaty country and the entity must hold that same nationality. Under the law, a U.S. entity may qualify as an E-2 enterprise if it is owned by 50% or more by treaty nationals.

A list of treaty countries can be found on the Department of State’s web site. Unfortunately, no present E-2 treaties exist between the U.S. and Brazil, Russia, India, or China. However, if an applicant has dual nationalities, s/he may utilize the E-2 qualifying passport for the purposes of securing the visa. The U.S. maintains treaties with some countries that allow the ability to obtain citizenship relatively quickly through their respective immigrant investor programs, which may present an option for nationals of countries where no treaty is available.

2. Substantial, At-Risk Investment: An investment must be substantial enough to ensure the successful operation of the business. Unlike the EB-5 immigrant visa, there is no per se minimum threshold amount, rather the investment generally needs to be substantial in a proportional sense to the startup costs or purchase price of the E-2 enterprise. Accordingly, an investor seeking to open a café would have a lower minimum investment threshold than an investor seeking to open a manufacturing plant.

3. Real, Active, and Operating Entity: The E-2 investment must be made in an entity that is already in active business operations, or will be able to commence operations immediately following issuance of the visa. Certificates of incorporation, contracts, letters of intent, a business lease, and similar documentation is generally required for startups.

4. Marginality: An investment must generate an income and employment for more than just the investor. Simply providing a basic living for the investor and his/her family, as self-employment, will not qualify. Likewise, noneconomic activity such as the mere purchase of real estate will not qualify. Unlike the Direct EB-5 visa, job creation is not quantified nor must job creation be direct hires by the E-2 entity. Startups generally require a comprehensive business plan.

PROCESS

The E-2 visa does not require an investor to file a petition with USCIS. Instead, the investor may file an application directly with a foreign consulate abroad. Each consulate has varying requirements and processes for application submission, however, the visa is generally issued in a matter of weeks or months following submission. In person consular interviews are usually required.

The consulate will issue an E-2 visa with a duration that varies based on the country of nationality’s reciprocity for U.S. citizens. Most nationals are able to secure visas valid for a period of five years, which is the maximum allowable.

It is important to distinguish the difference between visa validity and authorized stay. Each E-2entry, regardless of validity time remaining on the visa, allows for admission and authorizedstay of up to two years. With a valid visa, E-2 visa holders may depart the U.S. and reenter to secure a new 2-year admission. In other words, even if the visa has not expired, an E-2 visa holder would need to depart the U.S. and return prior to expiry of stay. Alternatively, s/he may file for an extension through USCIS. Once the visa expires and the E-2 holder departs the U.S., a new E-2 submission is required at a consulate abroad.

Spouses and dependent children of E-2 visa holders obtain their own E-2 visas. Spouses may apply for work authorization, allowing them the opportunity to work in the U.S. for any entity. Children do not qualify for work authorization; however, they may attend public or private schooling without student visas until the age of 21.

HIRING OF FOREIGN NATIONALS

Importantly, the E-2 visa can also be used to hire non-investor nationals to be employed by the E-2 entity. Specifically, individuals possessing a passport of the E-2 entity may be hired as Managers, Executives, Supervisory, or Essential Skills employees. Unlike other nonimmigrant employment visas such as the H-1B, no filings with the U.S. Department of Labor are required.

EXTENSIONS AND PERMANENT RESIDENCY

Although intended to be temporary, there is no numerical limit on the number of E-2 visas that one may secure. Renewal applications may be made at a consulate abroad, or if no international travel to be planned, an extension petition filed with USCIS.

The E-2 visa does not in and of itself provide a path to a Green Card. However, E-2 investments might be able to qualify or be modified to be able to secure a Direct EB-5 immigrant visa. An alternative path to permanent residency may exist if the E-2 visa holder possesses the qualifying experience abroad and there exists a foreign qualifying entity relevant to securing an EB-1-C immigrant visa.

2. A host of other options that may encompass entrepreneurial-minded clientele.
The U.S. immigration attorneys at GANDS have extensive experience in utilizing creative ways to secure temporary and permanent visas for entrepreneurial clientele in categories that may not apparent at first glance. We pride ourselves in utilizing an all-of-the-available diagnosis of each individual’s case in our consultations and have been able to successfully leverage the following categories to secure immigration benefits for our clients. Below are some examples that may suit the needs of entrepreneurs and investors:

EXTRAORDINARY ABILITY VISAS (O-1 / EB-1-A)

If an investor / entrepreneur can demonstrate that he or she has “sustained national or international acclaim” as being among the small percentage of individuals that have risen to the very top of the field, then an Extraordinary Ability visa may be an option.

The EB-1-A Green Card has a notably high evidentiary standard but allows for self-petitioning. The immigrant must show receipt of a major internationally recognized award, such as a Nobel Prize (which is quite rare) or the far more common proof of satisfying certain regulatory criteria evidencing the relative status in the field. This petition may be subject to premium processing, allowing relatively fast immigration to the United States.

The O-1 non immigrant visa is analogous to the EB-1-A but has a few key differences. Importantly, the burden of proof is considerably lesser, especially for those in the arts. The O-1 requires a U.S.-based petitioner, which may be an employer or agent. The O-1 visa allows for an initial three-year period of stay and unlimited extensions are available in one-year increments.

THE EB-2 NATIONAL INTEREST WAIVER

The EB-2 National Interest Waiver Green Card requires an applicant to show:

• The proposed endeavour is of substantial merit and national importance;
• The applicant is well-positioned to advance the endeavour; and
• On balance, it would be beneficial to U.S. to bypass usual EB-2 requirement of a job offer and PERM labor market test.
  The EB-2 NIW is similar to the EB-1A and many applicants choose to apply for both simultaneously. Further, the NIW was recently liberalized to allow for more entrepreneurial-minded applicants. Like the EB-1-A, no offer of employment is required, individuals may self-petition. However, premium processing is currently not available and processing times may vary significantly.

H-1B SPECIALTY OCCUPATION VISA

The H-1B Specialty Occupation visa provides some limited opportunity for entrepreneurs to obtain immigration status in the United States. A bona fide employer-employee relationship is required and thus not every business will qualify. Close consultation with an immigration lawyer is a practical necessity in such cases.

The H-1B visa requires employment in a specialty occupation that requires a U.S. Baccalaureate Degree (or foreign equivalent) and the payment of a wage compliant with requirements determined by the Department of Labor (the prevailing wage). There is also an annual cap on the number of petitions that can be approved. Given recent demand, a lottery is instituted with all cap-subject petitions requiring filing by early April. Some petitions are cap exempt given the nature of the employment or employer.

B-1 VISITOR FOR BUSINESS / ESTA VISA WAIVER FOR BUSINESS (VWB)

In order to establish the foundation required to eventually support an EB-5, E-2, or L-1 filing, a foreign national may need to visit the United States. The Visitor for Business visa allows one to conduct research, complete commercial transactions, or attend conventions and meetings. Productive employment for U.S.-based entities is not permitted and, as such, prudent applicants may wish to work with an immigration attorney to ensure presentation to the appropriate government officials maximizes the success of admission.